Paul DeCamp Quoted in “Wage and Hour Issues to Watch the Rest of 2024”

Paul DeCamp, Member of the Firm in the Employment, Labor & Workforce Management practice, in the firm’s Washington, DC, office, was quoted in Law360 Employment Authority, in “Wage and Hour Issues to Watch the Rest of 2024,” by Jon Steingart. (Read the full version – subscription required.)

Following is an excerpt:

Elections' Uncertain Outcome …

Paul DeCamp, who represents employers as co-chair of Epstein Becker Green's wage and hour practice group, told Law360 that electing either Harris or Trump would have a giant impact on how the DOL applies the Fair Labor Standards Act and approaches enforcement.

"The differences are vast with respect to just about every aspect of wage and hour that has generated controversy over the last few decades, things like the scope of the employment relationship," he said.

"Who is an employee under the Fair Labor Standards Act? Who is an independent contractor? Things like joint employment. Who is considered an employer when there are multiple entities that in some way or another interact with a worker or relate to a worker? Things like how broadly or narrowly should the exemptions for executive, administrative and professional employees sweep? What, if any, should be the salary level required for those exemptions?"

The DOL articulating its interpretation in regulations and guidance materials provides information for private individuals to use as they enforce the law, and DeCamp said the election will have an impact on how the agency does its own enforcement as well.

"What kind of penalties should the department impose in wage and hour investigations, and under what circumstances?" he said. "Should the Department of Labor treat employers like stakeholders or like perpetrators?"

Results in state capitals matter a lot, too, especially if divided government in Washington means neither party is able to enact its legislative agenda on a national level, DeCamp said.

"I think we will continue to see states that have been active in the wage and hour space remain active," he said. "There are a number of states where the legislatures are overwhelmingly of one party or another." …

Supreme Court Sweeps Away Chevron Deference

Another uncertainty that will unfold in the months and years ahead is how courts will apply the Supreme Court's June 28 ruling on Chevron deference. …

"Chevron takes center stage when an employer challenges a regulation that the Department of Labor has issued," DeCamp said.

In its decision, the court swept away Chevron deference and held that an agency's interpretation may inform, but doesn't automatically bind, a court in a suit because courts, not the executive branch, are responsible for interpreting the laws Congress passes. How that plays out is something lower courts will grapple with in future cases where an agency's interpretation plays a central role.

Chevron gets a lot of attention, but it isn't the only variety of deference, DeCamp said.

"Commonly, in the absence of Chevron deference, we would be talking about Skidmore deference," he said.

Skidmore is a more flexible approach that lets a court choose whether to defer to an agency's interpretation that's expressed in an interpretive rule, rather than a regulation. The degree of deference Skidmore requires depends on a rule's persuasive value, which DeCamp called circular logic that leads courts to yield only to interpretations they agree with.

"I've never yet seen a court follow an agency guidance principle under Skidmore deference where the court has concluded that the agency was wrong," he said.

The high court's willingness to revisit Chevron deference comes as the justices have taken a stronger interest in delineating the constitutional separation of power between executive and legislative branches of government, DeCamp said.

"The real issue is what does it mean to execute the law versus what does it mean to legislate," he said. "The Supreme Court has shown greater attention to making sure that executive branch agencies don't overstep into the legislative sphere when they are issuing their interpretations, nominally, in the course of enforcing the laws that they enforce."